EPA Drops Alleged Clean Water Act Violations Against Client in the Aftermath of the Watershed United States Supreme Court CWA Case Sackett v. The United States of America

by The Session Law Firm on August 22nd, 2012

On July 31, 2012, the General George C. Marshall Memorial Post No. 2184, Inc., a chapter of the Veterans of Foreign Wars organization (“VFW”) received notice that the Environmental Protection Agency (“EPA”) was terminating a Findings of Violation and Order for Compliance (“Compliance Order”) previously issued to the VFW on July 7, 2011.

The Compliance Order, issued to the VFW for alleged violations of Section 404 of the Clean Water Act, would have required the VFW to spend hundreds of thousands of dollars “restoring the Site or mitigating lost wetlands and/or stream functions” that the VFW and its technical consultants claim had not been impacted.

The VFW, its attorneys, The Session Law Firm (“TSLF”), and its technical consultants, Ray and Susan Kagel, Kagel Environmental, presented legal and technical arguments to the EPA in support of the VFW’s position that the EPA’s demands for restorative actions were unwarranted. These arguments, made even stronger in light of the Sackett opinion rendered by the Supreme Court during the pendency of this matter, focused on the lack of technical basis for the Compliance Order. The VFW’s technical support, Ray and Susan Kagel were also the experts for the plaintiffs in Sackett.

While not explicitly acknowledged, the Kagels’ and TSLF strongly suspect EPA took into account the technical insufficiency of its Compliance Order in light of parties’ recent ability to challenge the factual and legal bases of such orders in court. However, whatever the “stated” reason for terminating the Compliance Order, it was a welcome victory for the VFW and TSLF.

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